On petition for writ of certiorari to the United States Court of
Appeals for the Tenth Circuit.
The motion of respondent for leave to proceed in forma pauperis
is granted. The petition for writ of certiorari is denied.
Chief Justice BURGER, with whom Justice WHITE and Justice
REHNQUIST join, dissenting.
In this case, the Court of Appeals vacated respondent's death
sentence because it found that the state prosecutor withheld
information that might have been material to the jury's sentencing
decision. I would grant certiorari because I believe this case
raises two important issues worthy of this Court's attention-how to
distinguish a specific from a general request for exculpatory
information, and how to determine whether withheld information was
material to a sentencing decision.
I
Kendal Ashmore was a horse breeder. On the morning of March 17,
1977, Mrs. Ashmore and her assistant, Kathy Brown, went to meet a
man who had expressed an interest in Morgan horses. Phillip Ashmore
returned home from work that evening to find that his wife had not
returned. He soon received a tele-
Page 469 U.S.
1090 , 1091
phone call in which the caller told him that he had abducted
Mrs. Ashmore and Brown. The caller demanded $1/2 million in $100
bills, and warned Mr. Ashmore not to tell anyone about the call.
Mr. Ashmore called his attorney, who contacted the Federal Bureau
of Investigation.
The next day, Mr. Ashmore gathered the ransom money. The caller
again telephoned, and told Mr. Ashmore to leave the money at a
specified location at a local rodeo arena or his wife would be
"dead." The caller also told Mr. Ashmore that the Ashmore truck was
at 91st Street and Memorial Avenue in Tulsa. This call was traced
to respondent's home phone.
Mr. Ashmore delivered the money to the predetermined spot at the
rodeo grounds. Later that same day, he received a call telling him
that the money had not been left in the proper place, that he
should pick up the money, and try again the next day. The caller
also told Mr. Ashmore that if he did not do exactly as he was told,
"I'm going to send back a big hunk of your old lady in a box to you
in the mail. . . ." This call was traced to a service station phone
booth; the respondent's palm print was taken from the receiver
handle on the telephone.
After the second call, the police set up surveillance of the
respondent's home, which was about two miles from the rodeo grounds
where the money was to be left. At about 3:20 a.m., the police
arrested the respondent and searched his house. The bodies of Mrs.
Ashmore and Brown were later found in a shallow grave on property
rented by the respondent.
The respondent was indicted and tried for the murder of Mrs.
Ashmore. Prior to trial, the respondent made several requests for
exculpatory evidence. Only the following four were considered by
the court below:
"1. Statements of all persons who
have been interviewed by . . . any . . . governmental agency in
connection with the subject matter of this case . . . .
"2. Stenographic recordings or
transcriptions of any oral statement made by any person to . . . a
member of any . . . governmental agency in connection with the
subject matter of the case.
* * * * *
"4. The names and addresses of all
persons who may have some knowledge of the facts involved in the
instant case.
* * * * *
Page 469 U.S.
1090 , 1092
"13. Any and all oral statements made
to . . . any . . . law enforcement official." 1
Four FBI records were not disclosed pursuant to this request
that arguably should have been. None of the withheld documents bear
on the guilt or innocence of the respondent. None suggest that he
was not involved in the kidnaping, and none are relevant to rebut
an inference that he intended that the victims be killed.
The first, and the one considered most critical by the Tenth
Circuit, is a statement made to the FBI by Ms. Poppy Weaver. Ms.
Weaver said that at 4:10 on the afternoon of March 17, 1977, she
was in a store parking lot in Jenks, Okla. She glanced from a
distance of about eight or nine parking spaces at a blue-and-white
pickup she identified as belonging to the victim. The FBI report
indicates that Ms. Weaver stated that she saw Mrs. Ashmore sitting
in the driver's seat, with an unidentified man and woman also in
the truck. The FBI statement does not reflect the fact that Ms.
Weaver later stated that she was never able to identify Mrs.
Ashmore as having been in the truck. [
Footnote 2]
The second is a statement made to the FBI by J.C. Hamilton. Mr.
Hamilton said that he saw a man get out of the Ashmore pickup truck
at 91st Street and Memorial Avenue in Tulsa between 8 a.m. and 8:30
a.m. on March 18, 1977. Mr. Hamilton said he saw the man then get
into a black car that was waiting there. [
Footnote 3]
The third is a statement by a Jenks public school student, Kyle
West. The youth told the police that he saw a "shiny red" pickup
truck parked at 91st Street and Memorial Avenue on the afternoon of
March 17. His report said nothing about any other vehicles.
[
Footnote 4]
Page 469 U.S.
1090 , 1093
The fourth is a transcription of a statement made by the
victim's husband. During the first phone call from the kidnapers,
Mr. Ashmore told the FBI, the caller told him: "There are four of
us. We're not kidding. If your wife tries anything like that Honky
that works for you, we'll do her the same way." 5
At trial, respondent was convicted of murder and sentenced to
death. [
Footnote 6] Although
his counsel argued that unnamed accomplices might have been the
actual killers, no testimony was introduced to support this claim.
On appeal, the Oklahoma Court of Criminal Appeals affirmed, Chaney
v. State,
612 P.2d
269 (1980), and this Court denied the petition for a writ of
certiorari. Chaney v. Oklahoma, 450 U.S. 1025 (1981).
After Chaney's direct appeals were exhausted, the four withheld
documents at issue here surfaced. After two unsuccessful
state-court applications for postconviction relief, Chaney sought a
writ of habeas corpus from the Federal District Court, arguing that
the prosecutor wrongfully withheld the requested documents. The
District Court refused to grant the writ, finding that Chaney's
counsel had made only a general request for exculpatory evidence,
and, under the due process standard applicable to such
Page 469 U.S.
1090 , 1094
requests, the withheld evidence did not create a reasonable
doubt as to Chaney's conviction or death sentence.
The Tenth Circuit reversed, and vacated the death sentence.
730 F.2d
1334 (1984). It found that the requests for information were
"as specific as possible" because Chaney did not know the names of
the withheld witnesses. It then found that while the withheld
evidence was not material to Chaney's conviction, it was material
to the imposition of the death penalty because the withheld reports
"might well have made the jurors, or one of them" doubt the
prosecutor's claim that Chaney had no accomplices. Id., at 1357. It
found that the possibility that others were involved in the
kidnaping and the killings bore on the establishment of aggravating
circumstances, and constituted "important mitigating evidence."
II
It is well settled that in certain circumstances a prosecutor is
required to disclose exculpatory evidence to a defendant. Brady v.
Maryland,
373 U.S.
83 (1963); Moore v. Illinois,
408 U.S. 786 (1972). In
United States v. Agurs,
427 U.S. 97 (1976), this
Court recognized that withholding of exculpatory testimony could
arise in three different situations. The Court held that the
knowing use of perjured testimony requires that the conviction be
set aside "if there is any reasonable likelihood that the false
testimony could have affected the judgment of the jury." Id., at
103. The second situation involves a "specific request"-a request
that gives "the prosecutor notice of exactly what the defense
desire[s]"-for information in the prosecution files. Id., at 106.
In the face of such a request, the information should be provided
either to the defense or the court if "the subject matter of such a
request is material, or indeed if a substantial basis for claiming
materiality exists . . . ." Ibid. The third situation arises when
only a general request or no request at all has been made, perhaps
because "exculpatory information in the possession of the
prosecutor" is "unknown to defense counsel." Ibid. In this
situation, all "obviously exculpatory" evidence should be provided
to the defense; if it is not, and the omitted evidence "creates a
reasonable doubt that did not otherwise exist, constitutional error
has been committed." Id., at 112. The Court recognized that the
prosecutor was not obligated to disclose "any information that
might affect the jury's verdict," id., at 108, because the
Constitution "surely does
Page 469 U.S.
1090 , 1095
not demand" complete discovery of prosecution files as a routine
practice. Id., at 109.
In the context of Agurs, the distinction between "specific" and
" general" requests seems self-explanatory. The paradigmatic
"specific" request is one for statements made to police by a named
accomplice. Id., at 104. The paradigmatic "general" request seeks "
anything exculpatory" or "all Brady material." Id., at 106-107.
Since Agurs, however, courts and prosecutors have struggled to
distinguish "specific" from "general" requests. Part of the problem
arises because not all requests fall into obvious "specific" or
"general" categories. Part of the problem arises from a tension
inherent in Agurs' formulation: the defense must give the
prosecutor notice of what is desired, but notice alone-such as
notice that the defense desires every document in the prosecution's
files-is not enough to overcome the prosecutor's interest in
avoiding premature or excessive discovery.
Some courts have resolved this tension in a common-sense manner.
They have found "specific" only those requests that give notice "of
the defendant['s] interest in a particular piece of evidence."
Commonwealth v. Jackson, 388 Mass. 98, 110,
445
N.E.2d 1033, 1040 (1983) (emphasis added). Nor is it a
"specific" request to seek statements of all persons who have been
interviewed by the State but who are not expected to be called as
witnesses. Thompson v. Missouri,
724 F.2d
1314 (CA8 1984). Similarly, a request for written statements
taken from any witnesses subsequent to the murder is "general."
United States ex rel. Moore v. Brierton,
560
F.2d 288 (CA7 1977).
The Court of Appeals' holding below conflicts sharply with this
body of cases. It treats as "specific" those requests which seek in
a blanket fashion all reports prepared by all investigatory
agencies. See also United States v. Warhop,
732
F.2d 775, 778 (CA10 1984) (request for any "F. B.I. interview
statements" was "more than sufficient" to be specific) ( citing
opinion below). It justifies this broad right of discovery by
focusing on what heretofore has been an imponderable-the
defendant's ability to phrase the request more precisely.
This Court has suggested that the critical distinction does not
derive from the defendant's ability to frame a more detailed
request; the Court in Agurs understood that "exculpatory
information in the possession of the prosecutor may be unknown to
defense counsel." Agurs, supra, 427 U.S. at 106. The Court
addressed
Page 469 U.S.
1090 , 1096
this dilemma by requiring some information to be released when
there was only a general request or no request at all. In Agurs, it
did not matter whether the withheld information was available
elsewhere; this would suggest that neither does it matter whether
the request was "as specific as possible."
The opinion of the Court of Appeals conflicts squarely with
those courts that have held that sweeping requests for all
information in the government's files are not "specific." It
conflicts fundamentally with Agurs by relying on the state of the
defendant's knowledge; its holding has already been followed within
its Circuit. The conflict at issue here deserves the attention of
this Court.
III
Even if we were to agree with the Court of Appeals that the
requests for information here were "specific," a substantial
question still would arise as to whether the withheld information
justifies setting aside the jury's sentencing decision. This Court
has never applied Brady or Agurs to a sentencing decision.
[
Footnote 7] The question of
what constitutes "material" information in the context of the
sentencing decision merits our attention.
8
To decide whether the withheld information was material to the
sentencing decision raises a host of questions that have never been
considered by this Court. Brady and Agurs in terms do not deal with
evidence on mitigating circumstances. Do the standards for
reversible error that apply in the guilt phase apply unchanged in
the sentencing phase, or must new standards be crafted? Should the
court look to the sentence imposed in light of all the evidence, or
should it look only to whether a violation occurred? Do they apply
only to sentences imposed by juries, or also to sentences imposed
by judges? Do Brady and Agurs apply only to capital sentencing
decisions, or to all sentencing decisions?
Page 469 U.S.
1090 , 1097
In addressing these issues, the Court of Appeals held that the
death penalty should be set aside because the withheld evidence
"might have affected" one juror's assessment of whether mitigating
circumstances existed but did not consider the overwhelming
evidence that the respondent intended that the victim would be
killed. [
Footnote 9]
The approach taken by the court below significantly alters the
balance struck in Agurs between a prosecutor's duty to reveal
exculpatory evidence and his interest in avoiding premature or
excessive discovery of his files. Evidence material to mitigation
is not always self-evident; here, at most, the mitigating evidence
shows only that other people were involved with the respondent in a
scheme to kidnap and murder two women. A prosecutor cannot
Page 469 U.S.
1090 , 1098
fairly be presumed to recognize the utility of such information
to the defense. The only way a prudent prosecutor could ensure
sustaining a conviction under the rule applied below is to open to
the defense all files-including those files that deal with ongoing
investigations into alleged accomplices. In Agurs, this Court
explicitly held that this was not constitutionally required.
IV
The Court of Appeals opinion highlights a conflict in the
courts, and raises broad issues worthy of this Court's attention. I
would grant the petition for a writ of certiorari.
Footnotes
Footnote 1 730 F.2d
1334, 1340 (CA10 1984) (emphasis deleted).
Footnote 2 Chaney's own
attorney stated at the federal habeas hearing that Ms. Weaver told
him that "she in fact did not make those statements, was not sure,
and was not sure at this time, which was April of '81, nor was she
sure in March of 1977 when Agent McLain talked with her." Id., at
1355, n. 27. In the course of the federal habeas proceeding, the
District Court stated that both the District Attorney and Chaney's
counsel had indicated that Ms. Weaver had stated that she could not
testify that the woman she saw on March 17 was the victim.
Footnote 3 The Tulsa County
District Attorney, S.M. Fallis, testified that this information was
not exculpatory because the truck was already in police custody at
the time of this sighting. Fallis testified that the individual
seen leaving the truck was an employee of Mr. Ashmore's. Id., at
1348.
Footnote 4 Mr. Fallis
explained that this statement was not exculpatory because there was
no known connection between any red pickup truck and the facts of
this case. Ibid.
Footnote 5 Mr. Fallis
testified that tapes of the other phone calls, in which the caller
stated that more than one person was involved, were played to the
jury. Even if exculpatory, this evidence was thus cumulative.
Footnote 6 The jury found
all four aggravating circumstances argued by the State:
"1) the defendant knowingly created a
great risk of death to more than one person in that he did in fact
kill, without authority of law, two persons, Kendal Inez Ashmore
and Kathy Ann Brown, as the evidence shows.
"2) The defendant committed the
murder for remuneration or the promise of remuneration in that the
evidence shows that the defendant kidnapped and killed both Kathy
Ann Brown and Kendal Inez Ashmore and was attempting to extort
$500,000 from the family of Kendal Inez Ashmore.
"3) The murder was especially
heinous, atrocious and cruel in that the defendant bound the
victims and choked them to death with pieces of cloth and buried
their bodies in a shallow grave.
"4) The murder was committed for the
purpose of avoiding or preventing a lawful arrest or prosecution in
that the evidence shows that the defendant killed the victims after
kidnapping them in order to prevent them from testifying against
defendant for the kidnapping charge." Id., at 1352, n. 24. At least
the first two aggravating circumstances would be unaffected by a
finding that Chaney was not present at the killings, so long as he
intended that the victims die. The Court of Appeals did not
consider Chaney's intent.
Footnote 7 In Brady, this
Court stated in dicta that withheld evidence must be produced when
it is material to either guilt or punishment, but did not actually
need to reach the issue because the right to a resentencing hearing
was not before the Court. The Court has never commented on what
would constitute "materiality" in the sentencing context.
Footnote 8 One obvious
difference distinguishes the application of the " materiality" test
to the sentencing phase of the trial. In the guilt phase, some
evidence is not relevant to the elements of the substantive
offense. In the sentencing phase, virtually all credible evidence
is relevant.
Footnote 9 The evidence is
overwhelming both that Chaney intended that the victims would die,
and that he was the actual killer. The evidence indicates that he
was the caller who warned that Mrs. Ashmore would be " dead" or
pieces of her body returned in a box if the ransom request was not
complied with-one call was traced to his home phone; his palm print
was found on the phone from which the other call was made. Other
physical evidence-the contents of the victim's stomach, the length
of the hair on her legs, the sharpness of the crease in her pants,
the amount of makeup on her face, the condition of the
gravesite-all supported an inference that she was killed within a
short time of her abduction, before Chaney's arrest. Still more
evidence-the theft of towels like those used in the murder from the
hotel room he stayed in, his sighting near the burial scene at
about the alleged time of the killing and burial, with dirt on his
pants up to the knees-all constitute powerful evidence that he was
involved in the actual killing.
Moreover, some of the withheld evidence supports an inference
that Chaney, and not any supposed confederate, was the actual
killer. Ms. Weaver reportedly told the FBI that she saw the
Ashmore's pickup truck about 100 miles from the burial site on the
afternoon of the kidnaping, at about the time the prosecution
argued that the murder occurred. She saw three people in the truck;
she ultimately could identify none of those persons as Mrs.
Ashmore. At about this time, Chaney was seen near the burial site.
One logical conclusion is that any supposed confederates were far
from the burial site in Mrs. Ashmore's truck but without Mrs.
Ashmore at the most likely time of the killings, while Chaney was
near the grave. This supports, rather than contradicts, a finding
that Chaney himself was the killer.
The court below did not take this evidence into account. Cf.
Strickland v. Washington,
466 U.S.
668, 695, 2069d 674 (1984) (When sentence challenged for lack
of effective assistance of counsel, "the question is whether there
is a reasonable probability that, absent the errors, the sentencer
. . . would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death").